Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange CountySuper. Ct. No. 04NF0022, Richard F. Toohey, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
INTRODUCTION
Defendant Nuvia Jeanneth Constantino appeals from her conviction for second degree murder, arguing she was prejudiced by an incorrect special jury instruction on the doctrine of imperfect self-defense. The jury was instructed with CALCRIM No. 571. The trial court then instructed the jury with a special instruction taken from CALJIC No. 5.17 and In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1 (Christian S.). The special instruction explained the legal effect of defendant’s wrongful or unlawful conduct if she had created the circumstances justifying use of force by the victim. Defendant argues the CALCRIM instruction correctly stated the law and the special instruction did not. We conclude the evidence did not support the trial court giving any instruction on the imperfect self-defense doctrine. Therefore, it was also error for the court to give the additional special instruction on imperfect self-defense.
However, it is not reasonably probable defendant would have obtained a more favorable verdict if the jury had not been instructed on imperfect self-defense. The jury was fully and correctly instructed on self-defense. Defendant, knowing the victim did not have a weapon, walked past the victim twice while defendant and her friends exchanged words with the victim and her companions. Defendant then obtained a knife, intending to stab the victim. Defendant stabbed the victim four times and the victim died as a result. The prosecutor primarily discussed imperfect self-defense during closing argument to explain why it did not apply under the facts of the case. We conclude the jury would not have rendered a different verdict if the challenged instruction had not been given. We therefore affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
During the evening of January 2, 2004, Yolanda Veloz, her sister-in-law, and a friend were talking in front of their apartment complex. A car drove into the alley next to the apartment complex and parked. Defendant, Linda Duarte, and Robert Marquez got out of the car and walked past Veloz and her companions toward Duarte’s apartment. As defendant, Duarte, and Marquez walked by, Duarte made comments to Veloz and her companions. (A couple of weeks before this incident, Veloz had had a confrontation with Duarte’s mother. Additionally, a few days before the incident, in the middle of the night, defendant and Duarte had yelled at Veloz to come outside, and defendant said something to Veloz about disrespecting her “homegirl’s” mother.)
About 15 minutes later, defendant, Duarte, and Marquez left the apartment, again walked past Veloz and her companions, talked “smack,” and said, “[w]hat are you looking at?” Veloz’s friend told defendant’s group to keep walking, and they were not worth their time. Defendant, Duarte, and Marquez got into the car and drove away.
Defendant, Duarte, and Marquez returned a short time later and parked in the same spot in the alley. As they got out of the car, defendant and Duarte had beer bottles in their hands, and started “trash talking” to Veloz and her companions. Defendant and Duarte were louder and more aggressive than the first two times they had passed Veloz and her companions. Defendant approached Veloz, who tried to talk to defendant, but they began to argue. Defendant threatened Veloz with the beer bottle, and Veloz tried to get the bottle away from defendant.
Defendant hit Veloz, and stabbed her four times with what was described as a butterfly knife. Duarte and defendant got into the car and sped away. Veloz died as a result of massive bleeding; one of the stab wounds had pierced her chest cavity and entered her heart. Veloz and her companions were not in possession of any weapons, and did not attack defendant.
Defendant did not testify, but a tape recording of a police interview of defendant conducted the evening after Veloz’s murder was played for the jury. In the recording, defendant said the following: Veloz confronted defendant when she, Duarte, and Marquez were leaving Duarte’s apartment. When they returned to Duarte’s apartment, Veloz was not outside. When defendant and her companions left the apartment for a second time, three girls rushed at them. The girls “started socking” defendant, and threw her on the ground. Someone hit defendant in the back. Defendant had obtained a butterfly knife from Duarte’s apartment, and had it in her jacket pocket with the blade open for protection because she believed Veloz and her companions were waiting for her and were always carrying weapons; she used this knife to stab Veloz. Defendant believed she only stabbed Veloz once while Veloz was “socking” her, and defendant was still on the ground.
Defendant also said the following in the recording: Five or six “gangster baldy guys” with Veloz attacked Marquez. Defendant thought one of the men with Veloz was going to pull a gun. She had told Duarte and Marquez she wanted a knife to stab Veloz, but she only meant she would stab Veloz if Veloz pulled out a weapon. Defendant would not have fought with Veloz if Veloz had not approached her. Defendant had no bruises or cuts despite her claim Veloz had attacked her and beat her. Defendant could not explain why only she – not Duarte or Marquez – had a knife if they all expected trouble from and were fearful of Veloz and her companions.
After the stabbing, defendant cleaned the knife with Duarte’s shirt, and washed the clothes she was wearing. A few days after the murder, the police located a chrome butterfly knife at Duarte’s father’s residence; the knife was found wrapped in a pair of pants, inside a plastic trash bag, on the floor of a bedroom closet.
Defendant was convicted by a jury of second degree murder and was sentenced to a prison term of 15 years to life. Defendant timely appealed.
DISCUSSION
I.
Did the trial court err in instructing the jury regarding imperfect self-defense?
“Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. [Citations.] When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought. [Citations.]” (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178 (Vasquez).)
The trial court instructed the jury on the doctrine of imperfect self-defense with CALCRIM No. 571: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because she acted in imperfect self-defense. [¶] If you conclude that the defendant acted in complete self-defense, her action was lawful, and you must find her not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if [¶] One, the defendant actually believed that she was in imminent danger of being killed or suffering great bodily injury. And the defendant actually believed that immediate use of deadly force was necessary to defend against the danger. But at least one of those beliefs was unreasonable. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder.” The court then instructed the jury with a special instruction proposed by the prosecutor: “The principle of imperfect self-defense is not available and malice aforethought is not negated if the defendant by her unlawful or wrongful conduct created the circumstances which legally justified her adversar[y]’s use of force.” It is this special instruction which forms the basis for defendant’s arguments on appeal.
The special instruction was a portion of CALJIC No. 5.17’s instruction on imperfect self-defense, and was based on language from the Supreme Court’s decision in Christian S., supra, 7 Cal.4th at page 773, footnote 1: “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense.”
The Attorney General’s argument that defendant did not preserve an objection to this instruction is without merit. Defendant’s counsel objected to the inclusion of the special instruction and argued CALCRIM No. 571 fully and properly stated the law on imperfect self-defense.
There was no evidence supporting a claim of imperfect self-defense in this case; therefore, neither CALCRIM No. 571 nor the special instruction should have been given. Even under defendant’s description of what happened before Veloz was stabbed, defendant never actually believed that she was in imminent danger of being killed or suffering great bodily injury, or that the immediate use of deadly force was necessary to defend herself against the danger presented.
Defendant raises three specific arguments as to why the language of the special instruction was error. We need not address two of the arguments, because they are based on the premise that the special instruction misstates the law. We have concluded it was error to instruct the jury generally on imperfect self-defense at all because there was no evidence to support that defense.
As a third argument, defendant contends the special instruction implied that defendant’s unlawful or wrongful conduct could prohibit negating malice in the context of sudden quarrel or heat of passion, which was raised as a separate defense to the murder charge. This argument is meritless. The special instruction reads, in relevant part: “The principle of imperfect self-defense is not available and malice aforethought is not negated if the defendant by her unlawful or wrongful conduct created the circumstances which legally justified her adversar[y]’s use of force.” The reference to malice aforethought in this instruction is clearly tied to the imperfect self-defense doctrine. We find it inconceivable that any reasonable juror could read it otherwise. In addition, the instruction on sudden quarrel or heat of passion never mentions the concept of malice aforethought; thus, there would be no reason for any reasonable juror to see a connection between the language of the special instruction on imperfect self-defense and the heat of passion doctrine.
II.
Was the error prejudicial?
Even though the trial court erred in instructing the jury on the doctrine of imperfect self-defense, we conclude the error was not prejudicial. The appropriate standard of harmless error to apply in this case is that of People v. Watson (1956) 46 Cal.2d 818, 836—whether it is reasonably probable defendant would have obtained a more favorable verdict in the absence of any error. The provision of incomplete or incorrect instructions on a lesser included offense in a noncapital case violates state law, not the federal Constitution. (People v. Breverman (1998) 19 Cal.4th 142, 176.) The challenged special jury instruction addressed the issue of imperfect self-defense—a doctrine that can reduce murder to the lesser included offense of voluntary manslaughter. (Id. at pp. 153-154.) Indeed, the failure to instruct a jury on the doctrine of imperfect self-defense is reviewed for Watson error (Vasquez, supra, 136 Cal.App.4th at p. 1180; see People v. Randle (2005) 35 Cal.4th 987, 1003 [error in failing to instruct on imperfect defense of others is state law error]); it would be anomalous to review error for not giving such instructions and giving them incorrectly by different standards.
In considering whether the error in instructing the jury on the doctrine of imperfect self-defense was prejudicial, we must consider the totality of the instructions. (People v. Guerra (2006) 37 Cal.4th 1067, 1136; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) In addition to CALCRIM No. 571 and the special instruction, the jury was instructed with CALCRIM Nos. 505, 3471, 3472, and 3474, all of which correctly set forth the applicable law on self-defense. Given the totality of these instructions, we conclude it is not reasonably probable defendant would have obtained a more favorable verdict in the absence of the imperfect self-defense instructions.
CALCRIM No. 505, as read to the jury, provides: “The defendant is not guilty of murder or manslaughter if she was justified in killing someone in self-defense. The defendant acted in lawful self-defense if, [¶] one, the defendant reasonably believed that she was in imminent danger of being killed or suffering great bodily injury, [¶] two, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger, and [¶] three, the defendant used no more force than is reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant may have believed that there was imminent danger of great bodily injury to herself. [¶] Defendant’s belief must have been reasonable and she must have acted only because of that belief. The defendant is only entitled to use the amount of force that a reasonable person would believe is necessary in the same situation. [¶] If the defendant used more force than was reasonable, the killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant in considering what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The defendant’s belief that she was threatened may be reasonable, even if she relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. [¶] A defendant is not required to retreat. She is entitled to stand her ground and defend herself, and if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury is passed. This is so even if safety could have been achieved by retreating. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. The People have the burden of proving beyond a reasonable doubt the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter.”
CALCRIM No. 3471, as read to the jury, provides: “A person [who] engages in mutual combat, or who is the first one to use physical force, has a right to self-defense only if [¶] one, she actually and in good faith tries to stop fighting, and [¶] two, she indicates by word or conduct to her opponent in a way that a reasonable person would understand that she wants to stop fighting, and that she has stopped fighting, and she gives her opponent a chance to stop fighting. [If t]he person meets these requirements, she then has a right to self-defense if the opponent continues to fight. [¶] If you decide that the defendant started the fight using non-deadly force, and the opponent responded with such sudden and deadly force the defendant could not withdraw from the fight, then the defendant had the right to defend herself with deadly force and was not required to try to stop fighting.”
CALCRIM No. 3472, as read to the jury, provides: “A person . . . does not have a right to self-defense if she provokes a fight or quarrel with the intent to create an excuse to use force.”
CALCRIM No. 3474, as read to the jury, provides: “The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist[. W]hen the attacker withdraws, or no longer appears capable of inflicting any injury . . . the right to use force ends.”
In closing argument, the prosecutor spent relatively very little time discussing the imperfect self-defense doctrine. Most references to the doctrine were in the context of explaining why it did not apply, given the evidence in the case.
Finally, the evidence supporting the jury’s second degree murder verdict was overwhelming. The only evidence that could arguably support a claim of imperfect self-defense was a portion of defendant’s recorded statement to the police. Even that statement, however, when considered in its entirety, seriously undermined the defense. Defendant walked past Veloz twice before she admittedly placed the open butterfly knife in her pocket with the intent to “put out a knife and shank” Veloz if something happened the third time she passed by her. Defendant admitted Veloz did not have a weapon. Veloz was stabbed four times, in the chest, neck, and abdomen, while defendant suffered no injuries. This evidence seriously undermined any claim of self-defense on defendant’s part.
Therefore, even if the jury had not been instructed on imperfect self-defense, it is not reasonably probable it would have come to a different conclusion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.